1/9/2006

In an era when America is still too divided by race and riches, Judge “Alioto” has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job. In fifteen years on the bench, not one.

As Paul from Power Line observes, this is a very cute formulation that allows Kennedy to paint Alito in a false light. It allows Kennedy to say something that is (apparently) technically true, but that creates the misleading impression that Kennedy wishes to foster. Look at all the qualifications in Kennedy’s formulation:

“on the merits” — this phrase allows Kennedy to exclude the case of Zubi v. AT&T Corp., 219 F.3d 220 (3d Cir. 2000), in which Judge Alito wrote an opinion saying that a black plaintiff should be allowed to sue for racial discrimination, disagreeing with his two other colleagues on the panel. Kennedy apparently does not consider this opinion to be “on the merits” because it dealt with the procedural issue of the statute of limitations.

“alleging race discrimination on the job” — this allows Kennedy to ignore Alito’s rulings in favor of black defendants in criminal cases, such as the cases of Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) and Brinson v. Vaughn, 398 F.3d 225 (3d Cir. 2005), both having to do with the prosecution’s use of race-based peremptory challenges.

Kennedy wants to exclude both opinions Alito joined but didn’t write and opinions he wrote that aided such litigants in important ways. With those exclusions, how much of a point does he have left?

I should add that, while Malkin and Bench Memos’s Wendy Long have claimed that Kennedy’s statement was inaccurate, the evidence I have thus far seen does not bear that out. Rather, the cases cited above show only that Kennedy (or, much more likely, a staffer of his) was being very devious and slick in choosing his words.

Kevin Roderick is correct: Friday night was the first time (to my knowledge) that I have been in a room with Bob Shrum.

He promised me that he would stop attacking Republicans with last-minute smear jobs. “Shrummie,” I says to him, I says, “don’t you feel guilty deep down inside, always using these late hits?” He had to agree. Apparently nobody had ever actually confronted him on the issue before.

And if you believe that . . .

Back in the real world, I had a chance to converse with Cathy Seipp, Amy Alkon, Jill Stewart, Bob Sipchen, and a couple of television industry guys named Mike Sullivan and Scott Kaufer (who invited me — thanks, Scott!). And I saw Kevin Roderick. Everyone was very nice, though they wanted to know why Michael Hiltzik thinks I’m like Josef Stalin. (My best explanation: he doesn’t like me, and he didn’t like Stalin.)

Too bad I won’t be able to go to these events regularly; I generally have to pick up my son from day care downtown, which I didn’t have to do on Friday. But it was fun to hang with the movers and shakers for a night — even if I didn’t really convince Bob Shrum that it was enough already with the late hits.

UPDATE: This is embarrassing. I think I mixed up Shrum with Bob Mulholland. Those Democratic consultants named Bob all run together in my mind. Sorry, Shrummie.

In 1986, when he served in the White House Office of Legal Counsel, Alito wrote a memo arguing that the president should issue “interpretive signing statements” when signing legislation. Courts have long looked at “legislative intent” when necessary to clarify the meaning of a statute, but in his memo, Alito argued that a “president’s understanding of a bill should be just as important as that of Congress.” Senators should ask Alito exactly what he meant by this. On its face, the assertion threatens to undermine the fundamental constitutional principle that it is for Congress to write the laws and for the executive to, well, execute them.

It’s the “well” in that sentence that gets under my skin. It’s right up there with “um” on the annoyance scale.

How about the “fundamental constitutional principle” that a bill doesn’t become law unless the president, um, well, signs it?